Justice Nariman said if prostitution is licensed then all health parameters and concerns would be met.
New Delhi: The Supreme Court on Tuesday reserved verdict on a batch of petitions seeking to decriminalise gay acts between two consenting adults.
A five-judge Constitution Bench, comprising Chief Justice Dipak Misra and Justices Rohinton Nariman, A.M. Kanwilkar, D.Y. Chandrchud and Indu Malhotra, reserved judgment at the conclusion of marathon hearing.
At the outset the court rejected arguments that it was for Parliament to repeal a provision and court cannot interfere. Justice Nariman said, “We cannot wait for a ‘majoritarian government’ to decide on enacting, amending or striking down a law if it violates fundamental rights. Even if we legalises gay sex and decriminalises Section 377 of IPC, non-consensual gay sex and bestiality would continue as offen-ces under Section 377”.
He said the courts are not in obligation to wait and would act if any violation of fundamental right was brought before it.
“The moment we are convinced about violation of the fundamental right, the object of these fundamental rights give power to the court to strike down the law,” he said.
Justice Nariman said if prostitution is licensed then all health parameters and concerns would be met. Only when it is made illegal that it happens slyly and all kind of health concerns arise.
Justice Chandrachud cited the South African experience and said, “It is always better to recognise sexual orientation so as to allow people access to healthcare with dignity. If you suppress sexuality, it will lead to suppression and no treatment of a lot of diseases like HIV, AIDS and STDs.”
The bench made these observations when advocate Shyam George, appearing for some Apostolic Alliance of Churches and Utkal Christian Association, submitted that it was the legislature’s job to decide whether to amend or allow Section 377 in the statute book.
Counsel also referred to the term “sexual orientation” and said it cannot be read interchangeably with the term “sex” used in Articles 14 and 15, which deal with the right to equality of the citizen.
He said the term sexual orientation was different from the term sex as there have been several kinds of sexual orientation. He said what is illegal cannot be permitted to be allowed merely because there is consent between two adults to do an illegal act.
The court then observed that an environment has been created in the Indian society over the years that has led to deep-rooted discrimination against the gay community, which has also adversely impacted their mental health.
Senior counsel K. Radhakrishnan appearing for another Christian organisaiton said the effect of de-criminlising gay sex would be that the family system, which is the foundation and bulwark of Indian social structure right from Rig Vedic age will be in shambles.
He said that the institution of marriage will be detrimentally affected; the Indian society will be polluted and destabilized; there will be rampant homosexual activities for money which will tempt and corrupt young Indians into this trade; further rampant homosexual activities will occur all over India in Hostels where students, youth and employees reside. HIV/AIDS will spread and India will loose its nobility, character and virtuousness, and the State will be compelled to enact more than one statute similar to Immoral Traffic (Prevention) Act.
Justifying Section 377 of IPC, he said it virtually protects the dignity and self-respect of human beings, safeguards the society and its institutions and mankind as a whole from abuse and degeneration. The law acknowledging the primacy of nature leads the mankind properly in the process of evolution. Thus it is a provision with a vision and mission. The right to life, personal liberty and privacy are not license to lead illegal life, to indulge in undignified and immoral activities and to flout the cherished constitutional concepts and duties.
Counsel Harshvir Pratap Sharma, argued that after the legalizing of live in relationships, false cases of rapes have increased. If section 377 is decriminalized and consent becomes the paramount consideration, in case of abandoning of a same-sex partner, the other partner will be aggrieved. Therefore maintaining status quo of the law in its present form would act as a deterrent to ensure such group continues to be a part of mainstream of the society.